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Tuesday, February 05, 2013

Legal Justification for Drone Attacks on Citizens

I read the DOJ's White Paper on the legal rationale for killing American citizens who are alleged senior Al-Queda operatives overseas with great interest. While I think that the memorandum is well-reasoned, I do not agree with the legal "trigger" that the DOJ identifies.

The White Paper says that a citizen is eligible for death-by-drone when "an informed, high-level, official of the U.S. government has determined that the targeted individual poses an imminent threat of violent attack against the United States." In my opinion, this threshold is too low. First, who counts as a high-level official? The CIA Director? The Ambassador to Pakistan? An analyst at Langley? This is not clear at all. Second, suppose that the majority view in the intelligence community is that someone does not pose an imminent threat. The standard for death, I gather, is met so long as ONE informed, high-level person thinks that a suspect poses an imminent threat. I submit that the President can always find one "senior-enough" person in his Administration with that view, so in reality the DOJ standard just gives the White House carte blanche.

Personally, I would prefer that Congress create a statutory regime for such decisions that would require the National Security Council to sign off on each of these citizen attacks before the President can proceed. But until then, the President is, I think, acting within his constitutional authority to conduct such attacks.

In "Kill or Capture" and other accounts, some analyst [not who I'd label "high level, official" myself, but technically, maybe] isn't the final say here, in fact, the President seems to be involved in each case. But, sure, it should be clearly apparent.

As to who decides, again, the evidence suggests various cases where some actually wanted to use drones (nearly always mind you against non-citizens) and they were not because of some division in the ranks.

I don't think the NSC rule works in all cases. It delegates the C-I-C power in some contexts. Let's say it involves a citizen Al Qaida leader in the battlefield area of the Pakistan/Afghan border. The C-i-C has the final say here to make military decisions, even if "drones" are used.

The tricky part is when national self-defense alone is cited and it involves a place outside the clear battlefield -- let's say some isolated location in Yemen.

The President is not asserting the power to "kill anyone he wants" ... like "I want to close Gitmo. Can't find a place to put these guys. I think I'll just kill them."

Can we address specifically what is at issue here? Ultimately, yes, as commander-in-chief, the President DOES have a certain degree of unilateral power. Even there, it is limited in various ways though by some overblown hyperbole, you might not know it.

The president is absolutely asserting the power to kill anyone he wants.

He gets to decide whether the factors required for the "legal test" (AQ or Associated force, senior leader, imminent threat, capture infeasible) have been satisfied, and to do so in complete secrecy, with no oversight or review. There is nothing preventing him from deciding that you are a senior member of an associated force that presents an imminent threat to the US.

In fact, this has almost certainly already happened: The president killed 16 year old Abdulrahman Awlaki, a US citizen, without any allegations that he was in any way involved in terrorism. It seems fairly obvious that he was killed because he lived in Yemen and the president feared he might want to avenge the assassination of his father, who, according all public evidence, was merely a propagandist - an activity protected by the 1st amendment.

This white paper is little more than a convoluted promise to only kill the bad guys.

The "DOJ white paper" appears to be an intentionally leaked trial balloon. I have never seen an unsigned and undated internal memorandum of law like this.

Assuming that this is actually the Obama administration's legal reasoning, the memorandum goes substantially further than what is required by the Constitution and the law of war.

The President as CiC has the power to kill all members of a wartime enemy - regardless of nationality - unless they are surrendering.

The only due process an American al Qaeda is entitled while in the field is a reasonable status determination that the person is actually AQ. That status determination can be made by anyone the CiC designates down to the local military commander.

If the AAQ desires the due process afforded a civilian criminal defendant charged with treason or terrorism, then he or she can surrender.

The white paper is correct that the war with AQ extends to any location AQ bases itself and there are no sanctuaries.

The white paper is incorrect that the AAQ must offer an "imminent threat" or that it must be impractical to capture the AAQ before the President can kill the AAQ. These are self imposed limitations a future president should ignore. Being a member of AQ is enough to kill the AAQ as a wartime enemy and there is no duty under the law of war to capture unless the AAQ surrenders.

First, it's unclear how imposing greater bureaucracy in an emergent situation would suffice. Emergency situations dictate emergency action, right? You can armchair strategize about tactics all you want, but I predict that real tactics materialize differently.

Second, is there not existing precedent where police officers make such tactical decisions? How different is a targeted drone attack than a cop shooting someone on the run when collateral damage is assumed equal?

The sixteen year old was by credible reports killed -- like happens over and over again in military conflicts -- as collateral damage. We can of course make stuff up via conspiracy theories.

The legal test is a result of precedents as Josh implies. For instance, Congress authorized military force against certain groups. AUMF 2001. The same applies to time, place and manner limits as to use of force.

Bombing a private residence in NYC, e.g., requires different rules than some isolated locale in Yemen. At some point, yes, there is some unilateral decision-making. Finally, again, "something" is stopping him from killing anyone, anywhere.

As to "what about Bush," Obama has not said he has some total Art. II override. To the degree Bush has various discretion to use force, yes, that isn't a matter of party. SPECIFIC things, not anything he did, were a concern.

Your analysis is hilarious. "Something" is stopping him from killing anyone he wants...now where was it...its around here some...where...hhmm...well, something!"

Credible reports! Did you notice that the supposed actual target was never identified, or consider that the government has repeatedly lied about attacks in Yemen? Obama has authorized bombing funerals and rescuers, among many other grotesqu horrors - stopping some blowback is not far-fetched.

I'll say it again: Under the president's interpretation of his power to kill american citizens, there is no legal check on his ability to murder american citizens. All he has to do is tell himself that they were associated with AQ and threatening the US.

Bart - I agree completely that the president has the de facto power and has long claimed the de jure power to kill anyone he wants. Most people in this country, however, including almost all lawyers I've ever met, delude themselves into thinking this is not the case. My point here is that now he is even telling you!

It's good to see that Obama's legal advisers can meet the high legal standards set by Yoo and Bybee.

Among this memo's contributions to jurisprudence is the redefinition of immanence. Not only does "immanent" not require evidence of specific attack in the near future, but grasp this: "the U.S. government may not be aware of all al-Qa'ida plots as they are developing and thus cannot be confident that none is about to occur". Therefore a hypothetical attack can be legally considered "imminent" as long as its non-existence and/or non-immanence cannot be proven.

As for the legal justification for dropping bombs in an otherwise sovereign state without that state's consent, this memo cites the authoritative precedent of Nixon's bombing of Cambodia. Alllrighty then, the Republic is in good hands.

"The checks on presidential murder are impeachment followed by a murder trial.""

is wishful thinking. Of course, impeachment by the House leads to a trial in the Senate, which is not a murder trial. Perhaps our yodeler has in mind a trial subsequent to the Senate trial which may acquit the impeached President or find him guilty and take follow up action provided in the Constitution - but that's not a "murder trial."

Now perhaps our yodeler has in mind Bush/Cheney's WMD, etc, slam dunk for invading Iraq resulting in many thousands of deaths and injuries as constituting war crimes for which they may be charged with murders in a non-USA venue.

" the President is, I think, acting within his constitutional authority to conduct such attacks"

I suppose at this point this is true and I certainly cannot argue with a legal scholar. Still such a power is antithetical to the most basic ideals of liberal democracy.

It's one thing for nations under the authority of elected political leaders to kill their citizens or other for that matter but to declare such is legal must certainly be peculiarly American. Would America concede that other nations can legally kill whoever those they choose?

Has our yodeler forgotten the Gerald Ford approach re: Tricky Dick Nixon? Of course, Nixon resigned before the House impeached, so there was no Senate trial - and no trial after Nixon resigned because of the Gerald Ford gambit.

But in explaining himself on the entire impeachment process, our yodeler failed to mention what if the Senate trial results in an acquittal such that the President is not removed from office?

And what about reliance upon legal advice? (No, not a DUI legal specialist!) Wasn't that the Bush/Cheney approach that seemed to work?

What's sauce for the goose may be sauce for the gander. One has to be consistent with reality, if "YOO" know what I mean.

Impeachment and removal is technically a limit. So, is funding, public opinion, limited resources and the need for a bureaucracy etc. to carry out your needs.

Bush and company was restrained by such things, even when pushing the limits of the law. Similarly, he was restrained by the courts. Rasul v. Bush et. al. limited denial of habeas rights.

But, it is oh so amusing to note that the President does not have unlimited power to kill anyone he wants, any time, anywhere.

There are a lot of serious concerns here, including the secrecy that even leads to denial of civil damage suits even to be tried (see Lawfare for a suggestion civil damage suits can be a helpful check here). The current Administration has some stuff to answer for there.

But, pretending that the President is in reality or theory some all powerful person is not really the best approach. We live in the "reality community" and this includes really seriously having some perspective on the reach of problems.